Portland Lumber Mills

National Labor Relations Board - Board Decisions

Oct 15, 1945

64 N.L.R.B. 159 (N.L.R.B. 1945)

In, the Matter of PORTLAND LUMBER MILLS and WARD WILMARTI-1, AN
INDIVIDUAL
Case No. 19-C-1.328.-Decided October 15, 1945
DECISION
AND
ORDER-
On January 10, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, on February 10, 1945, the re-
spondent filed exceptions to the Intermediate Report and a supporting
brief. On the same day, Local 2880, Lumber and Sawmill Workers
Union, United Brotherhood of Carpenters & Joiners of America, A.
F. L., intervenor in this proceeding, filed a brief. The Board has
reviewed the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial error was cominitted. • The rulings are
hereby affirmed.
Pursuant to notice and at the request of the intervenor, the Board
heard oral argument on March 1, 1945, in Washington, D. C. The
intervenor appeared and participated in the argument; no other party
appeared. '
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, the intervenor's brief, the oral argument,' and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except as
hereinafter modified.
1. We agree with the Trial Examiner that, in acceding to.the inter-
venor's request for the discharge of Ward Wilmarth under the
circumstances revealed in the Intermediate Report, the respondent
violated Section 8 (3) of the Act. Normally in cases in which an em-
ployer has unlawfully discriminated against an employee by discharg-
ing him, in addition to' affirmative relief, we order the employer, to
'Chairman Herzog and Mr. Reilly have read the full. official transcript of the oral
argument. _
64 N. L. R. B., No. 32.
159
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of, the Act. However, in the instant case, the
respondent discharged Wilmarth because it, believed in good faith,
though mistakenly, that the terms of its closed-shop contract--with-the
intervenor required that the respondent accede to the intervenor's de-
mand for Wilmarth's dismissal. Under such circumstances and, in
view of the absence of any evidence that danger of other unfair labor
practices is to be anticipated from the respondent's conduct in the past,
we shall not enjoin the respondent from the commission of any and all
unfair labor practices.2 Nevertheless, in order to effectuate the pur
poses of the Act, we shall order the respondent to cease and desist from
the unfair labor practice found and from any like or related act or con-
duct interfering with the exercise of the rights guaranteed in Section 7
of the Act. In addition, like the Trial Examiner, we shall order the
respondent to take certain affirmative action, including reinstatement
of Wilmarth with back pay, designed to effectuate- the policies of
the Act.
Nothing in our order hereinafter set forth shall be taken to pro-
scribe conduct of the respondent protected by the proviso to Section
8 (3)'of the Act. - -
2. In the third paragraph preceding the caption "Concluding find-
ings" in Section III of the Intermediate Report, the Trial Examiner
inadvertently referred to the intervenor's letter to Wilmarth of July 12
as "the Portland District Council letter to him of August 12. . . ."
We hereby correct the Intermediate Report as to the date of the letter
to July 12.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Portland Lumber Mills,
Portland, Oregon, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) 'Discouraging membership in International Woodworkers of
America, affiliated with the CIO, or any other labor organization of its
employees; by discharging or refusing to reinstate any, of its em-
_ ployees, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of employment;
(b) Engaging in any like or related act or conduct interfering with,
restraining, or coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Interna-
tional Woodworkers,of America, affiliated with the CIO, or any other
labor organization, to bargain collectively through representatives of
2 See N. L. R. B. v. Express Publishing Company, 312 U S 426.
PORTLAND LUMBER MILLS 161
their own choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ward Wilmarth immediate and full reinstatement to
his former or a substantially equivalent ,positioil , without prejudice to
his seniority and other rights and privileges;
(b) -Make whole Ward Wilmarth for any loss of pay that he may,
have suffered by reason of the respondent 's discrimination against him,
by payment to him of a-sum of money equal to-the amount which he,
normally would have earned as wages during the period from the date _
of his discharge to the date of the respondent's offer of reinstatement,
less his net earnings during such period;
(c) Post at its plant in Portland, Oregon, copies of the ' notice
attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty ( 60) consecutive days thereafter , in conspicuous places,
including places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered , defaced, or covered by any other material;
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order,,what steps
the respondent has taken to comply herewith.
APPENDIX ' A
NOTICE TO ALL EMPLOYES
PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to'effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
WE WILL NOT discourage membership in International
Woodworkers of America , affiliated with the CIO , or any other
labor organization of our employees , by discharging or refusing
to reinstate any of our employees, or by discriminating in any'
other manner in regard to their hire or tdnure of employment.
or any term or condition of employment , except insofar as said
conduct is protected by the proviso to Section 8 (3) of the Act.
WE WILL NOT engage in any like or related act or conduct
interfering with, restraining , or coercing our employees in the
670417-46-vol. 64-12
162 DECISIONS , OF NATIONAL, LABOR- RELATIONS, BOARD
exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities, for the
purpose of collective bargaining or other mutual aid or
protection. -
WE WILL- OFFER to Ward -Wilmarth immediate and' full
reinstatment to' his former or substantially equivalent position
without prejudice to-any. seniority or other rights and privileges
previously. enjoyed, and make him whole for any loss of pay suf
fered as a result of the discrimination.
PORTLAND LUMBER MILLS
--------=------------------------------
(Employer)
Dated--- ------- By ----------------------------------------
(Represen (Representative ) ( Title)
NOTE.-The above -named employee , if presently serving in the
armed forces of the United States, will be offered full reinstate-
ment upon application in accordance with the Selective Service
Act after discharge from the armed forces.
This notice must remain posted for 60 days from the' date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. 'William E. Spencer, for the Board. '
Malarkey, Sabin,& Herbring, by Messrs.,W L Malarkey and Rube)t L F'abrn,
of Portland, Oreg., for the Respondent. -
Wttrick, Flood & O'Brien, by M'r George Flood, of Seattle, Wash, for the AFL.
STATEMENT OF THE CASE
Upon a charge filed on August 28, 1944, by Ward Wilmarth, the National
Labor Relations Board, herein called the Board; by its Regional Director for
the Nineteenth Region (,-,cattle, Washington), issued its complaint dated
September 2, 1944, against Portland Lumber Mills, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) and
(3)' and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called,the Act. Copies of the complaint, the amendment to the com-
plaint, the charge and notice of hearing were duly served upon the respondent,
Ward Wilmarth,^and Portland'Distriet Council of Lumber and Sawmill Workers
chartered by United Brotherhood of Carpenters & Joiners of America, AFL.
With "respect to the unfair labor practices, the complaint as amended alleged
in substance: (1) that-since about May 3, 1940, the respondent and Local 2880,
Lumber and Sawmill Workers Union, United Brotherhood of Carpenters &
Joiners of America, affiliated with the AFL, herein called Local 2880, have
been and now are parties to a contract covering certain of the respondent's
1The original complaint alleged violation of 8 (1) only. On September 8 an amendment
to the complaint was served upon the parties alleging violation of Section 8 (3) of the Act.
PORTLAND LUMBER MILLS, -163
employees,' which contains the following provision "_ The Company agrees
to release from its employ .any, person, -upon formal demand from.-the Union,
who fails or refuses to maintain membership in good standing in the Union" ;
(2)^ about August 16, 1944, Local 2880 suspended Ward Wilmarth as a member
therein for the sole reason that he had served as an observer for the Inter-
national Woodworkers' of America, affiliated with the CIO, herein, called IWA,
in a Board election wherein Local 2880 and IWA appeared on the ballot; (3)
that on or about August 21, upon forinal'request of Local 2880, the respondent dis-
charged Wilmarth and has since refused to reinstate or reemploy him, for ,the
reason that Wilmarth had served as an observer for TWA in the said election ;
and, (4) by said act, the respondent has interfered with the rights of its em-
ployees as guaranteed in Section 7 of the Act.
The respondent thereafter filed its -answer wherein it admitted the existence
of the confract, the holding,of the Board election, and the discharge of Wilmarth.
It further admitted that it had knowledge that Wilmarth had been charged by
Local 2880 with being an observer for IWA at the election, but alleged that it
had no knowledge as to whether that was the sole reason Wilmarth was dropped
from Local 2880. The answer further alleged that at the tune the contract was
entered into Local 2880 was the Board's certified bargaining agency for its
employees, and that the contract, among other things, provided as follows:
It is the desire of the parties hereto that the employees covered by' this
Agreement shall maintain membership in good standing in the Union.
In order that this desire may be effected and the Union may discipline its
ineinbers for the effective operation of this Agreement, the Company agrees
to release from its employ any person; upon formal demand from the Union,
who fails or'refuses to maintain membership in good standing in the Union.
It is expressly, understood and agreed that all present employee members
of the Union shall maintain membership in the Union, and present employees
who are not members shall secure membership in the Union within a reason-
able length of time and maintain such membership.
The Union, )being the sole judge of its membership, shall have the right
to give written notice to the Company that a named employee or employees
have not complied with membership according to its rules, and the Company,
thereupon, shall within fifteen (15)) days discharge such employee.
.That on or about August 18, Local 2880 gave respondent written notice that
Wilmai th no longer belonged to the Union, having forfeited his membership,
and demanded his discharge ; that in compliance with the written notice and the
terms of the contract it discharged Wilmarth on August 21 without any investi-
gation as to the reasons for Wilmarth's loss of membership in Local 2880.
Pursuant to notice a hearing was held at Portland, Oregon, on September 14,
1944, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. At the opening of the hearing Portland District
Council2 and Local 2880, together herein called the intervenor, jointly moved
for leave to intervene insofar as their contractual and other rights might be
concerned a The motion was granted insofar as the intervenor's rights under
2 The Portland District Council had jurisdiction over all locals, including Local 2880, in
its district
2Included' in intervenor ' s motion and in support thereof was intervenor 's answer to
the complaint , wherein it was denied that Wilmarth was discharged on request of Local
2880 because he served as an observer to IWA at the election. It averred that Wilmarth
Has expelled by intervenor "pursuant to its governing Constitution & By-Laws."
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract were affected The intervenor also ^filed'an answer alleging that
Wilmarth was expelled from Local 2880 pursuant to its governing constitution
and by-laws. The Board,,the respondent, and intervenor were represented by
counsel and participated in the hearing. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses and to introduce
evidence bearing upon the'issues. At the conclusion of the evidence the Board's
counsel moved to conform the pleadings to the proof in formal matters There
was no objection and the motion was granted. At that time the respondent moved
to strike certain testimony relative to the conduct and activities of Local 2880.
The motion was denied' The respondent and intervenor moved separately to
dismiss the complaint. Ruling was reserved. The motions to dismiss are denied
All,parties argued orally on,the record at the close of the hearing, and the respond.
ent and intervenor have since filed briefs with the undersigned. After the close
of the hearing, upon motion of Board's counsel, as to certain corrections, and upon
his'own motion as to others, the undersigned ordered certain corrections made
in the transcript of the record.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent,' Portland Lumber Mills, is an Oregon corporation engaged in
the manufacture, and sale of lumber and lumber products, with-principal office
and place of business in the city of Portland, Oregon. The materials used by the
respondent in the course of its business operations, consisting mainly of logs, are
obtained from points within the State of Oregon. Of its manufactured products,
valued annually at $1,600,000. approximately 75 percent thereof is transported,
in interstate commerce to and through other States of the Union'
II. THE ORGANIZATIONS INVOLVED
International Woodworkers of America, affiliated with the:Congress of Indus-
trial Organizations, and Local 2880, Lumber and Sawmill Workers Union, United
Brotherhood of Carpenters & Joiners of America, affiliated with the American
Federation of Labor, are labor organizations admitting to membership employees
of the respondent.
C III . THE UNFAIR LABOR PRACTICES
None of the essential facts are in dispute. On May 3, 1940, following a Board
election wherein the IWA^and Local 2880 appeared on the ballot and which elect
tion was won by Local 2880, the respondent entered into a union-shop agreement
covering all the respondent's employees, with certain exclusions, containing a
clause providing for annual automatic renewal unless notice of termination or
modification was given by either party to the contract prior to May 3 of each suc-
ceeding year.' This contract, as modified by certain supplemental agreements
but still containing the union-shop provisions, was automatically renewed on
May 3, 1944, for an'additional year, on failure of either of the parties thereto
The intervenor also made a similar motion to strike, which motion was denied
At the hearing the respondent, through its attorney, stipulated that it was engaged in
commerce within the meaning of the Act.
The pertinent, provisions of the contract relative to a union shop are set forth in detaml
in the respondent's answer, supra.
PORTLAND LUMBER MILLS 165
to give written notice-30 days prior to May 3, 1944 , of'an intention to terminate.
However , on April ' 1, 1944, the IWA filed a petition for, investigation and certi-
ilcation of representatives covering -the employees ',included-in,the.-contract under
Section 9 ( c) of the Act . Thereafter , the Board found that the automatic re-
newal of the contract did not constitute a bar to an investigation and certification
of representatives , in view of the timely filing of the petition , and ordered an
election .' The election , in which Local 2880 and IWA only appeared on the
ballot , was held June 23, 1944 . The IWA lost the election . During the conduct
of the election , at the request of an IWA official , Ward Wilmarth , a head marker
employed by the respondent since 1939 8 and at the time a member in good
standing of Local 2880 , acted as an observer for the IWA . About July 13, Wil-
marth received a, letter from Portland District Council of Lumber and Sawmill
Workers, which reads as follows:
PORTLAND DISTRICT COUNCIL or LUMBER AND SAWMILL WORKERS
JULY 12, 1944
Mr. WARD WILMARTH,
Rt. 4 box 1038, Portland, Oregon
DEAR SIR & BRoTHER : Enclosed herewith is a copy of the charges filed
against you and approved by the Portland District Council of Lumber and
Sawmill Workers. '
You are hereby, notified to appear at the next regular meeting of the
Council on July 25, 1944, at 8: 00 p. in. in the meeting hall at, 327 S. W.
Jefferson St., Portland, Oregon, at this time charges will be turned over to a
trial Committee, to be selected at the meeting.
You have until this meeting to reply to these charges and can be repre-
sented'by Council if you wish, however, Council representing you must be
a member of the United Brotherhood of Carpenters and Joiners of America.
Failing to appear the Committee will-proceed with the trial.
Fraternally yours,
PORTLAND DISTRICT COUNCIL OF
LUMBER AND SAWMILL` WORKERS.
By /s/ J. S. Bown
J. S. BowN, Sec. Treas.
Attached to the letter was a copy of the charge therein referred to, as follows:
JULY 11, 1944
PORTLAND DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS
DELEGATES : I, James Whallon , Business Agent of The Portland District
Council of Lumber and Sawmill Workers , HEREBY; charge Ward Wilmarth
with violation of the obligation he took when becoming a member of Local
No. 2880, and the United Brotherhood of Carpenters and Joiners of America,
by giving aid and support to a dual organization , with the intent to disrupt
our organization.
To-wit : on June 23, 1944, Ward Wilmarth acted as an observer for the IWA,
Local 5-#, CIO, at an election held for the purpose of taking the
I In re: Portland Lumber Mills , 56 N. L R B 1336 . ( Decided June 10, 1944.)
s Wilmarth was first employed by the respondent about 1928 or 1929 , but for sometime
-prior to 1939 had been on leave of absence from the respondent while he acted as District
Council representative for the IWA. %
166 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
collective bargaining rights away from the Lumber and Sawmill
Workers Union Local No. ' 2880, ' at' the Portland Lumber Mills. in
Portland, Oregon.
Fraternally yours,- ,
JAMES WHALLON,
Business Agent.
Prior'to August 16, when Wilrnarth was tried,on the above charge at a meeting
of the Portland District' Council, Wilrnarth• was ih the office of G. A Robei tson,,
Treasurer of the respondent, and at that time Robertson was shown and read
the letter and charge
1 , 'On August 18 Robertson was handed the following letter -by, one of the mem-
bers of Local 2880's Plant Committee who signed it : • I
PORTLAND DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS
Portland, Oregon, AUGUST 18, 1914
Mr. G. A. ROBERTSON, President
PORTLAND LUMBER MILLS.
6611 N. Burlington, Portland, Oregon
DEAR SIR: This is to inform you that, one of your employees. Ward Wil-
marth, no longer 'belongs to the Union, having forfeited his membership,
We therefore, request that be be discharged' in accordance' with Article (1),
of our Working Agreement -
Very truly yours,
LUMBER & SAWMILL WORKERS UNION, LOCAL No. 2880
By, Plant. Committee,
(Sgcl) EDWARD J. BILLINGS
(Sgd) JAMES W. SMITH'
(Sgd) RAY WALI:ACE
President (Sgd) , JAMES W SMITH
After the receipt of the above' communication from Local 2880 and on the
following Monday, August 21, just before quitting time, Robertson sent for and
delivered to Wilmarth.a letter to which was attached Wilmarth's wage check
in full. The body of the letter read: ,
PORTLAND LUMBER MILLS
AUGUST 21, 1944
Mr WARD WILMARTH
Plant
DEAR SIR: This is to advise you that under'date of August 18th, 1944, we
received written notice from the Plant Commitee of Local Union 2880 that
you had not complied with Article I of the existing union shop contract
between the Local and the Portland Lumber Mills, and calling upon us to
discharge you in accordance with Article I:
We are therefore paying you off at this time,-August 18, 1944, and wish
to advise you-that you are discharged' and that the, relation of employer
,and employee,is severed, all in accordance with Article I.
Yours very truly.
PORTLAND LUMBER MILLS
By /s/ G. A. ROBERTSON
I Treasurer.
When,he received the letter., and. his pay. check, -Wilrnarth. excused himself,
went to the entrance of the building where he secured the Portland District"
PORTLAND LUMBER MILLS 167
Council letter to him of August 12 as well as the written charge against him,
returned to Robertson 's office and had Robertson reread the letter and'the charge.
The respondent's Vice-President L R. Hubbard, who came into the office about
,this time, also read the letter and the charge: Wilmarth then left after stating
that there probably would be further proceedings in the matter. He his not
since been reemployed by the respondent. From May 3, 1940, the initial date of
the union-shop contract to the date of the discharge of Wilmarth the respondent
discharged from six to eight employees upon demand of Local 2850 for failure to
maintain membership in that organization. In none,of the previous cases did
the respondent inquire as to the reasons why these employees were dropped from
membership in the local. It made no inquiry or independent investigation in
Wilmarth's case and in no way challenged Local 2880's right to discipline and
control its membership, on the theory that it had no right or authority to do so.
Wilmarth's work with the respondent was satisfactory.. The respondent had
no reason for discharging him other than the demand of Local 2880
There is no allegation in the complaint, nor evidence to support such an allega-
tion, that the respondent engaged in any unfair labor practices, other than the
allegations relative to the discharge of Wilmarth.
i Concluding findings
The question presented is whether, as the respondent and intervenor contend,
the union-shop agreement is a defense to the otherwise discriminatory discharge
of Wilmarth for non-membership in Local 2880.' '
The Board has discussed the extent of the immunity an employer is entitled
to under the proviso of Section 8 (3) of the Act° in several decisions where the
closed-shop contract was raised as a defense to alleged discriminatory discharges.
In Wallace Corporation," an election was held between the CIO and an inde-
pendent union under an agreement providing that the employer would enter into
a union-shop contract with the union that won the election. The Independent
was victorious and after the election demanded that the employer enter into a
closed-shop contract with it "to permit elimination from the respondent's pay roll
of employees unfavorable to the Independent." The employer thereafter signed
a closed-shop agreement and discharged a number of employees who had supported
the CIO, some of whom had applied for but had been denied membership in the
Independent. The Board found the closed-shop contract invalid The U. S.
Supreme Court affirmed the Fourth Circuit Court of Appeals order for enforce-
ment." In the majority decision Mr Justice Black used the following language :
We do not construe the provision authorizing a closed shop as indicating an
intention on the part of Congress to authorize a majority of workers and a
9 Section 8 ( 3) of the Act provides that it shall be an unfair labor practice for an
employer
By discrimination in regard to the hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor organi-
zation • Provided ,, That nothing in this Act , or in the National Industrial Recovery
Act (U. S C, Supp VII , title 15 , secs. 701-712 ); as amended from time to time or
in any other statute of the United States , shall preclude an employer from making
an agreement with a labor organization ( not established , maintained , or assisted by
any action defined in this Act as an ' unfair labor practice ) to require , as a condition
of employment , membership therein , if such labor organization is the representative
of the employees as provided in Section 3 (a), in the appropriate collective bargaining
unit covered by such agreement when made.
In re Wallace Corporation , The, 50 N . L. R B 38.
11 The Wallace Corporation v N L. R B, 323' U S 248 , affirming, 141 F (2d) 87
(C. C A. 4) ,
168 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company, as in the instant case, to penalize minority groups of workers by
depriving them of that full freedom of association and self-organization which
it was the prime'"purpose'of,the Act to protect"foi•"all purposes.
In the Rutland case,'" certain members of an AFL union holding a valid closed-
shop contract with the employer indicated their intention, shortly before th, e,-
expiration date of the contract, to seek representation by a CIO union. The AFL
union then persuaded the employer to discharge these employees and replace them
with new employees who were required to join the contracting union. As stated
by the Board the precise issue in the case was:
whether a closed-shop agreement-made in conformity with the conditions
of the proviso may operate as a defense to otherwise discriminatory dis-
charges effected toward the end of the contract term when the employees
covered by the agreement seek to change their collective bargaining repre-
sentative for the next contractual period.
After noting that the legislative history shows that the proviso was inserted
to avoid the interpretation of the Act which some had given to Section 7 (a) of
the National Industrial Recovery Act that closed-shop contracts were outlawed
under all circumstances, the Board stated : "But the mere fact that all closed
shops are not unlawful, by virtue of the proviso, is no reason for holding that
closed shops may be made perpetual because validly initiated -." The Board
reasoned that such could not have been the intent of Congress ; that the funda-
mental policy of the Act, in the light of which all its provisions-including the
proviso to Section 8 (3) must be read, is to
"promote industrial peace," thereby fostering commerce, through the pro-
tection of self-organization and the encouragement of collective bargaining
by representatives of the employees' own choosing
that, to be meaningful, this right of the employees to select representatives must
necessarily include the right "at some appropriate time" to change representa-
tives. It noted that the contract is question was about to expire and under the
Board's practice it was the appropriate time to change representatives if the
employees so desired, and concluded,
The discharge of the very employees whose representation is in issue, because
they have placed their representation' in question, is clearly inconsistent with
the whole policy and general scheme of the Act.
The facts in the instant case clearly show that Wilmarth was discharged by
the respondent on demand of the contracting union because he had at "an appro-
priate time" chosen to put "in issue" the question of who should represent him
and the other employees The respondent and the intervenor argue, however,
that there was some evidence of collusion between the employer and the contract-
ing union in the Rutland case, whereas there is not the slightest proof of any
collusion in the present case and that the evidence shows conclusively that the
respondent simply complied with the contract terms in discharging' Wilmarth
after demand by Local 2880 and without making any inquiry into or giving any
concern to the reason Local 2880 had for dropping his membership; that to have
made such inquiry would have amounted in effect to policing Local 2880's right
to run its affairs and discipline its members.
It is clear, however, that in the Rutland case that the Board in its findings
was thinking in terms of knowledge of the reason behind the demand for the
discharges rather than because it was convinced of collusive action, and it took
u In re Rutland Court Owners, Inc., 44 N. L. R B. 587.
PORTLAND LUMBER MILLS 169
the broad position that the proviso in Section 8 (3) cannot be used as a device
to deprive employees of their statutory right to elect representatives at appro-
priate times In this respect the Board used the following language in its Sup-
plemental Decision after the Rutland case came up for reargument:
The proviso relating to the closed shop is not a severable and separate
portion of the Act. It must be construed in the light of the statutory state-
ment of policy and the general provisions of the Act, and if any seeming
conflicts' arise they should be resolved so as to give proper effect to the
salient provisions of the Act. It is a well settled principle of statutory
construction that ina remedial statute a broad effect should be given the
general provisions and a narrow construction placed upon the limitations.
[Citing Fleming v. Ha'keye Pearl Button Co., et at., 113 F. (2d) 52
(C. C. A. 8)1. The expressed purpose of the Act is to insure employees of
their own right of self-organization and a free choice of representatives.
We cannot allow the declared intention of Congress to be evaded by per-
mitting an employer and a union thus to combine to preclude the employees
from expressing their choice The proviso in Section 8 (3) cannot therefore
be considered as an instrument for depriving employees of their statutory
right to select another representative for a period succeeding the term
embraced by the closed-shop contract.
The undersigned is convinced that under the provisions of the Act itself, and
the decisions above cited construing the proviso to Section-S (3) thereof that
the respondent was not required under the circumstances herein found to
discharge Wilmarth under the terms of'the union-shop contract on demand and
notice by Local 2880 that he was no longer a member of the contracting union;
but on the contrary, the respondent having notice-of the illegal purpose behind
the demand was in duty bound to refuse to comply therewith Having ordered
the discharge, even though actinggn entire good faith, it must be held account-
able for this discriminatory act.
It is therefore found that the respondent, by its discharge of Wilmarth, dis-
criminated in regard to hire and tenure of employment, thereby discouraging
membership in the IWA and encouraging membership in Local 2880, and inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON CORM 11ERCE
The activities of the respondent set forth in Section III, above, occurring in
'connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in an unfair labor practice,
it will be recommended that it cease and desist therefrom, and take certain action
necessary to effectuate the policies of the Act.
It has been found that the respondent discriminatorily discharged Willnarth.
It will be recommended that the respondent reinstate him to his former or sub-
stantially equivalent position, without prejudice to his seniority'and other rights
and privileges, if necessary dismissing any, person hired since the elate of his
21 In re Rutland Court Owners , Inc., 46 N . L R B. 1040.
170 ,DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. It will also be recommended that the respondent pay to Wilmarth an
amount equal to that which he would normally have earned as wages from the
date of his discharge-to the date of the offer of reinstatement, less his net earn-
ings," during such period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW I
1. International Woodworkers of America, affiliated with the Congress of
Industrial Organizations, and Local 2880, Lumber and Sawmill Workers Union,
United Brotherhood of Carpenters & Joiners'of America, affiliated with the
'American Federation of Labor, are -labor organizations within the meaning of
Section 2 (5) of the Act. -
2. By discriminating in regard to the hire and tenure of employment of Ward
Wilmarth, thereby discouraging membership in International Woodworkers of
America, affiliated with the Congress of Industrial Organizations, the respondent
has engaged in and is engaging in-unfair labor practices; within the meaning of
Section 8 (3) of the Act.
3. By said act the respondent has interfered with, restrained, and coerced its-
employees in the exercise of the rights guaranteed in Section 7 of the Act and
has engaged in and is engaging, in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Portland Lumber Mills, Portland, Oregon,
its officers, agents, successors and assigns, shall :
1. Cease and desist from discouraging membership in International Wood-
workers of America, affiliated with the Congress`of Industrial Organizations, or
any other labor organization of its employees, by,discharging any of its employees,
or in any other manner discriminating in regard to their hire and tenure of
employment or any term or condition of employment.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Ward Wilmarth immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and-privileges; r
,,.,(b) 1\Iake Ward Wilmarth whole for any loss of pay he may have suffered
by reason of the discrimination against him, by payment to him of a sum of
money equal to an amount determined in the manner set forth in the section_
above entitled "The remedy" ;
14 By "net earnings" is meant earnings less ' expenses, such as for transportation, room, .^
and board, incurred by an employee in connection with obtaining work or working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America , Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R. B. 440. Monies
received for work performed upon,Federal, State,,county, municipal, or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R., B.,
311 U. S 7. ' '
PORTLAND LUIVIBER MILLS - 171
(c) Post immediately in conspicuous places throughout its plant at Portland,
Oregon, and maintain for a period of sixty (60) consecutive days from the date
of posting, notices to its,' stating : (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 hereof; and (2) that the respondent will take the affirmative
action set-forth in paragraphs 2 (a) and (b) of these recommendations;
(d) Notify the Regional Director for the,Nineteenth Region in writing within
ten '(10) 'days from the receipt of this Intermediate Report what steps the
respondent- has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will, comply' with- the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the, action aforesaid. '
As provided in Section 33 of Article II of the Rules and Regulations of the,
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (115) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
'Building. Washington, D. C., an original and'four copies of a statement in writing,,
setting forth such exceptions to the intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections), as he
relies upon,-together with the original and four copies of -a brief iri support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief the party or counsel for the Board filing the same shall'serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any, party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days, from the date of the order transferring the case
to the Board. '
Dated January 10, 1945.
J. J.'FITZPATRICK,
Trial Examiner.